On November 15, 2022, a California district court declined to dismiss a declaratory judgment action brought by a data scraper, 3taps, Inc. (“3taps”), against LinkedIn Corp. (“LinkedIn”).  (3taps, Inc. v. LinkedIn Corp., No. 18-00855 (N.D. Cal. Nov. 15, 2022)).  3taps is seeking an order to clarify whether the federal Computer Fraud and Abuse Act (CFAA) (or its California state law counterpart) prevents it from accessing and using publicly-available data on LinkedIn, and whether scraping such data would also subject it to an action brought by LinkedIn for breach of contract or trespass.

This is not 3tap’s first experience with scraping litigation (see prior post). But if this dispute sounds strangely familiar and reminiscent of the long-running dispute between hiQ Labs and LinkedIn (which we’ve followed closely), it is.  The 3taps action traces its origin, in part, to the original hiQ ruling in August 2017, where this same judge first granted a preliminary injunction in favor of hiQ, enjoining LinkedIn from blocking hiQ’s access to LinkedIn members’ public profiles. Following that ruling, 3taps sent a letter to LinkedIn stating that it also intended to scrape publicly-available data from LinkedIn.  LinkedIn responded that while it was not considering legal action against 3taps, it cautioned that “any further access by 3taps to the LinkedIn website and LinkedIn’s servers is without LinkedIn’s or its members’ authorization.” Thus, the hiQ ruling, 3taps’s letter to LinkedIn, and LinkedIn’s reply were the genesis of the current declaratory judgment action filed by 3taps against LinkedIn.[1]

In August 2022, LinkedIn filed a motion to dismiss 3taps’s complaint.  It argued that the action should be dismissed because there is no actual case or controversy for declaratory judgment purposes because: (1) LinkedIn had not threatened litigation against 3taps; (2) 3taps has made only conclusory allegations that it was ready to scrape data from LinkedIn as part of its business; and (3) that, generally speaking, 3taps has no functioning business and its website is “shuttered.”  In short LinkedIn contends that 3taps “misconstrued the parties’ correspondence” and that “3taps fail[ed] to allege facts showing that it will suffer a concrete, real, or imminent harm in the absence of the requested declarations.” In response, 3taps alleged that it “stands ready, willing, eager and able to scrape publicly-available information from LinkedIn’s website and provide that data to third party developers” and that the “threat of ruinous litigation” is the only thing preventing it from immediately scraping LinkedIn’s website.

In declining to dismiss the action, the court found that, at this stage of the proceeding, 3taps has pleaded an adequate injury-in-fact supporting its declaratory judgment action. The court stated that LinkedIn “unpersuasively claims” that it has not taken an affirmative act against 3taps, pointing out that although LinkedIn’s reply to 3taps’s letter said that it was not considering legal action, it also made clear that 3taps has no authorization to access LinkedIn. The court noted that given that LinkedIn continues to “heavily” litigate the issue of data scraping in the hiQ matter, “3taps has sufficiently alleged an affirmative act by LinkedIn indicating a real likelihood it would enforce its rights against 3taps.”  In addition, the court found that 3taps has sufficiently pled its capacity to scrape as a legitimate business.

While this opinion does not adjudicate the substantive issues around scraping, it effectively tees up the issue for the court to examine. We are already closely monitoring the outcome of the hiQ-LinkedIn litigation, and can now add this related dispute as one to watch. It is likely that the findings in the latest LinkedIn-hiQ decision will be relevant to the resolution of this case. While the hiQ dispute may, at times, seem academic (at least with respect to the parties, as hiQ is no longer a functioning business), what’s interesting about the 3taps suit is that it involves the nuances of what happens when the principles of the hiQ rulings are applied in real time.

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[1] Note: This litigation was originally filed in February 2018, but was stayed during the pendency of the hiQ-LinkedIn appeal process.  With the Ninth Circuit having issued its latest decision (see here for our coverage), the 3taps suit is back on in earnest.

Photo of Jeffrey Neuburger Jeffrey Neuburger

Jeffrey Neuburger is a partner, co-head of the Technology, Media & Telecommunications Group, a member of the Privacy & Cybersecurity Group and editor of the firm’s New Media and Technology Law blog.

Jeff’s practice focuses on technology, media and advertising-related business transactions…

Jeffrey Neuburger is a partner, co-head of the Technology, Media & Telecommunications Group, a member of the Privacy & Cybersecurity Group and editor of the firm’s New Media and Technology Law blog.

Jeff’s practice focuses on technology, media and advertising-related business transactions and counseling, including the utilization of emerging technology and distribution methods in business. For example, Jeff represents clients in online strategies associated with advertising, products, services and content commercialized on the Internet through broadband channels, mobile platforms, broadcast and cable television distribution and print publishing. He also represents many organizations in large infrastructure-related projects, such as outsourcing, technology acquisitions, cloud computing initiatives and related services agreements.

Serving as a collaborative business partner through our clients’ biggest challenges, Jeff is part of the Firm’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team helping to shape the guidance and next steps for clients impacted by the pandemic.